I’m trying to dedicate a decent amount of this blog to common questions that our Clients have when they meet with us, since they are likely questions many folks have. One of those questions relates to “recording the will” and often comes in one of these forms:
“Are you going to record the will?”
“Mom [who is alive] has a will, but it was recorded by the lawyer that did it.”
“Do I have to record the will with the Register of Deeds?”
A will does not have to be “recorded” to be valid while a person is living. The only time a will needs to be “recorded” is following the death of the person that created the will, at which point the Will may need to be filed with the Clerk to start the probate process. Until that time, however, provided that the will was properly executed and witnessed, the original will simply needs to be kept in a safe place.
Folks that talk about wills being recorded aren’t incorrect, however. The Clerk of Superior Court in each county has a depository for original wills. For a small fee, any person may take their original will to the Clerk, and ask that it be deposited with the Clerk for safekeeping. If this has been done, the Clerk will give the person depositing a will a receipt in exchange for the will. That receipt will outline whose will has been deposited, the date on which it was deposited, and the County where it was deposited. Under the statute, once the will has been deposited, the only people that may access it while the person who created the will (the “Testator”) is living are the Testator, their duly-authorized agent, or their attorney. This isn’t technically “recording” the Will, but it is deposited somewhere
Some attorneys may do this as a matter of course. Clients are always free to do this as well. I normally advise clients that it is available, but is not required. So, to answer the question, “does a will have to be recorded”, the answer is “it depends.”